Key legal risks every Buyer’s Agent should address in 2026
The buyer’s agency sector continues to grow and face heightened regulatory scrutiny across Australia. Yet, many buyer’s agency agreements still contain legacy drafting, inconsistent compliance across jurisdictions, or provisions that simply won’t withstand the current enforcement climate under Australian Consumer Law (ACL).
Over the past 12 months, we’ve seen a sharp increase in disputes, non-payment of commissions, and challenges to the enforceability of core terms, particularly where agreements have not kept pace with legislative changes or with the new Unfair Contract Terms (UCT) regime.
Below are the key areas we are helping buyer’s agents strengthen to reduce risk and protect commission revenue.
1. Regulatory & Structural Compliance Across All States
Buyer’s agents increasingly operate across multiple jurisdictions, but many agreements still don’t reflect the specific requirements of each State or Territory.
We are commonly advising on:
- Ensuring full compliance with property and agency legislation across NSW, VIC, QLD, WA, SA, TAS and ACT.
- Proper integration of the prescribed QLD Form 6. We are already seeing clients signing the Form 6 in addition to their own agreements when purchasing in QLD, increasing the risk of inconsistency or unenforceability if not aligned.
- Alignment of terminology, disclosure obligations and statutory references with each state’s framework.
A “one-size-fits-all” agreement rarely covers and satisfies the different rules and regulations across jurisdictions, and in some cases, it can render commission provisions unenforceable.
2. Australian Consumer Law & Unfair Contract Terms
The revised UCT regime and penalty framework have materially changed the landscape. Many older buyer’s agency agreements now contain terms that are unenforceable, void, or expose the agency to regulatory action.
Key areas requiring careful updating include:
- Indemnities
- Termination rights
- Variation clauses
- Commission and fee provisions
We are routinely revising agreements to ensure they are UCT-proofed and defensible if challenged by a client or regulator.
3. Commission Protection
We’ve seen a noticeable rise in commission disputes which often arise from unclear terms in an agency agreement or gaps in protection mechanisms.
Effective agreements should clearly deal with:
- Commission triggers that remove ambiguity at the point of purchase.
- Commission entitlement that survives termination, particularly where the client proceeds with a property introduced by the agent.
- Protection where the purchase occurs through a related entity (spouse, trust, SMSF, nominee, company).
- Extended settlements or timing issues that may delay or jeopardise entitlement.
Strong drafting is often the difference between a seamless commission payment and a dispute.
4. Termination, Liability & Risk Allocation
Many disputes arise because termination rights are vague, inconsistent, or allow unintended escape routes.
We are strengthening:
- Termination clauses that are clear, enforceable and commercially fair.
- Survival provisions (ensuring key clauses e.g., commission, continue post-termination).
- Limitation of liability clauses drafted to comply with mandatory ACL carve-outs.
These clauses are often heavily scrutinised when disputed.
5. Execution & Operational Practicality
As buyer’s agents increasingly digitise their onboarding processes, their agreements need to match operational reality.
That includes:
- Ensuring electronic execution complies across all relevant jurisdictions.
- Correctly handling any cooling-off requirements that apply.
- Ensuring the agreement works seamlessly with CRM and digital onboarding workflow.
6. Dispute & Enforcement Mechanics
Finally, enforcement only works if the agreement is drafted to support it.
We focus on:
- Clear and appropriate governing law and jurisdiction
- Drafting with an eye to practical enforceability, whether in tribunals or courts.
- Processes that make commission recovery faster and more certain.
Supporting Buyer’s Agents to Protect Their Business
We work closely with buyer’s agents nationally to review, update and future-proof their agreements to ensure compliance, reduce risk, and protect commission revenue.
If you’re unsure whether your agreement is compliant or enforceable under the current legal framework, now is the time to have it properly reviewed.
Please contact us on [email protected]
